Proportionality and protest: 'Brown v Tasmania' (2017) 261 CLR 328

Abstract

The special case of 'Brown v Tasmania' required the High Court of Australia to consider the constitutional validity of the 'Workplaces (Protection from Protesters) Act 2014' (Tas) ('Protestors Act'), which enacted numerous anti-protesting provisions in relation to forestry land in Tasmania. The plaintiffs, Dr Bob Brown and Ms Jessica Hoyt, contended that numerous provisions impermissibly burdened the implied freedom of political communication, and were therefore invalid. The majority2 found all the impugned provisions invalid, whereas Gordon J partially dissented in finding only one provision invalid, and Edelman J fully dissented. The High Court was presented with an opportunity to clarify the relevant test for validity in implied freedom cases, particularly the relevance of structured proportionality testing as established in 'McCloy v New South Wales'. The case also presented the first opportunity in 20 years for the High Court to thoroughly examine how and in what contexts the implied freedom protects political communication that takes the form of protest. Conclusively, the test for validity remains the test established in 'Lange v Australian Broadcasting Corporation', as restated, with a slim majority affirming proportionality testing as a viable analytical tool. Justice Gageler and Justice Gordon voiced reservations and concerns about proportionality testing, thus diminishing the ability for 'Brown' to establish strong authority on the matter. Whether proportionality testing is suitable to the Australian constitutional system remains contested and is likely to be subject to continuous scrutiny. Meanwhile, the decision confirms that protest and physical assembly are protected by the implied freedom, although does not entirely explain when the freedom is enlivened.